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Showing 181 to 200 of 873 Records
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2010 (1) TMI 1128 - ALLAHABAD HIGH COURT
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... ... ..... the eligibility certificate was subsequently issued on September 10, 2001 after more than one year. The other fact which admitted is that there was no concealment or any misleading information given by the assessee. In view of the decision of this court in the case of Mansarovar Bottling Company Limited v. Commissioner of Trade Tax 1999 115 STC 530 1999 UPTC 864 and also followed in Chetna Chemicals Pvt. Ltd. v. Commissioner of Trade Tax reported in 2007 10 VST 569 2007 UPTC 1299, I am firmly of the view that the cancellation of the eligibility certificate under section 4A(3) was not warranted and justified in the facts and the circumstances of the case rather, it was open to the Revenue to file an appeal under section 10(2) of the U. P. Trade Tax Act but it did not do so. Consequently, the order dated July 12, 2002 and the notice dated March 11, 2002 issued under section 4A(3) are set aside. The eligibility certificate is restored to the assessee. This revision is allowed.
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2010 (1) TMI 1127 - ALLAHABAD HIGH COURT
Whether in a large beverages manufacturing unit having high speed automatic machines and manufacturing aerated beverages or marketing in consumer convenient glass bottles, running of the factory or workshop is impossible unless such glass bottles and shells are used simultaneously in the machine itself for filling the beverages and under the circumstances whether the Tribunal was justified in overlooking this important aspect of the word 'fixed capital investment' under section 4A of the U.P. Trade Tax Act by merely relying upon the decision under the Bihar Act, namely, Bihar Deferment Rules, where the definition of 'fixed capital investment' is not identical and is restricted to 'fixed assets'?
Held that:- The manufacture of soft drink, the bottles and crates are essential apparatus especially in a captive industry where the liquid which is prepared and collected by way of a continuous process in the bottles and thereafter kept it in crates and therefore they (bottles and crates) are to be accepted as "apparatus" within the meaning of Explanation (4)(b)(i) to section 4A of the U.P. Trade Tax Act.
Thus the questions in respect of it being treated as "fixed capital investment" are to be answered in favour of the assessee and against the Department.
The order passed by the Tribunal enveloping that part of the order passed by the Divisional Level Committee also is bad as there is no discussion why the review order on this point has been set aside, especially in view of the fact that the Department when it went in appeal had made no prayer that the period of exemption should be cut down from 15 years as granted in the review to any other period. Therefore this part of the order in appeal is also bad and is set aside. However the exemptions granted for 15 years will continue.
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2010 (1) TMI 1126 - MADRAS HIGH COURT
Whether the service has to be treated as taxable service in India and the petitioner is not liable for service tax as it is shown in the impugned show-cause notice issued by the respondent?
Held that:- Be that as it may, now as it is stated by the learned counsel for the petitioner, the legal position is clear as per the Rules. Accordingly, the writ petition is disposed of with a direction to the petitioner to give objections to the impugned show-cause notice of the respondent dated August 14, 2009 in the light of the legal position and if the petitioner submits such objections within a period of one week from the date of receipt of a copy of this order, the respondent shall pass final orders taking note of the above legal position within a period or four weeks thereafter.
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2010 (1) TMI 1125 - ALLAHABAD HIGH COURT
Demand notice issued by the Deputy Commissioner (Assessment) II, Trade Tax, Ghaziabad demanding a sum of ₹ 2,61,912 towards interest from the petitioner for the assessment year 1986-87 challenged
Held that:- The present writ petition has been resorted to as a "buyingtime" tactic. More realistic approach relating to costs may be the need of the hour. The petitioner has obtained a conditional stay order on September 13, 2004. The order provides that on deposit of ₹ 1,75,000 within one month from the date of the order, the operation of the impugned demand contained in the letter dated September 25, 2004 through the petition shall remain stayed. It is also equally settled that if the petition is being dismissed, the petitioner should restore back the advantages which it had obtained under the interim order. It is, therefore, provided that the petitioner will be liable to pay interest by way of additional sum over and above the amount which may be payable under the U.P. Trade Tax Act at the rate of six per cent simple interest per annum on the balance amount for the period from September 13, 2004 (the day on which the stay order was obtained) to the date of actual payment. W.P. dismissed.
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2010 (1) TMI 1124 - ALLAHABAD HIGH COURT
Whether in view of the finding of fact recorded by the assessing authority which has been confirmed by the Tribunal that entire basmati rice manufactured by the applicant, for which recognition certificate was granted, have been sold in the course of export and rice so manufactured has not been sold otherwise, the Tribunal was not justified in confirming imposition of tax on the purchase of paddy alleged to have been used in obtaining broken rice during process of manufacture of rice sold within the State of U.P. in the course of inter-State sale?
Whether in view of the facts that entire rice manufactured out of paddy having admittedly been sold in the course of export, no tax can be legally imposed on the purchase merely because some waste product and by-products obtained during the process of manufacture of rice, have been sold either in the State of U.P. or in the inter-State trade and commerce?
Whether no rice mill is established for manufacture of by-products which included broken rice, etc., and the recognition certificate having also not been granted for manufacture of by-products, namely, broken rice, the Tribunal was not justified in confirming imposition of tax on the alleged purchases of paddy which is said have been sold in connection of the broken rice obtained during manufacturing process of rice?
Held that:- while it is open to the tax Department to tax the assessee on the sale of broken rice either in U.P. or outside U.P. the intention under the notification is clear. The exemption has been granted, the raw materials used and therefore, in this case the imposition of tax on the purchase of paddy to the extent of 4.75 per cent is bad and not justified and it is set aside by this court. The questions referred to are answered in favour of the assessee and against the Department.
While it is open to the tax Department to tax the assessee on the sale of broken rice either in U.P. or outside U.P. the intention under the notification is clear. The exemption has been granted, the raw materials used and therefore, in this case the imposition of tax on the purchase of paddy to the extent of 4.75 per cent is bad and not justified and it is set aside by this court. The questions referred to are answered in favour of the assessee and against the Department.
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2010 (1) TMI 1123 - ALLAHABAD HIGH COURT
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... ... ..... nt for the imposition of further tax on the assessee. Having heard learned counsel for the assessee and learned standing counsel, I am of the view that the assessee was liable to pay tax on his manufactured goods as his books of account showed that he had paid duly taxes on the goods manufactured by him, it could not be said that he evaded tax on account of the fact that some raw material was apprehended without form XXXI. For reasons that the assessee was not liable to pay any tax on its raw material, the assessee has relied on a decision of this court in the case of CST v. Super Cassette Industries Ltd. NOIDA reported in 1998 UPTC 642. Thus, in view of the string of decisions of this court, I also come to the conclusion that the imposition of tax on the raw material is not justified. The order of the Tribunal dated February 16, 2002 therefore is set aside. The questions referred to are answered in favour of the assessee and against the Department. This revision is allowed.
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2010 (1) TMI 1122 - ALLAHABAD HIGH COURT
Inclusion of freight in assessee's turnover and avers that the freight was being born by the railways
Whether the Tribunal has wrongly rejected the evidence produced by the assessee and should have accepted its evidence towards 3D evidence as additional evidence under section 12B?
Whether the Tribunal has wrongly assessed the assessee as a manufacturer as the assessee is not a manufacturer within the meaning of section 2(e) of the U.P. Trade Tax Act?
Held that:- In so far as the first issue is concerned with regard to cartage, the issue is conclusively established against the assessee. In view of clause 18 of the contract, which is on the record of the paper book, which records clearly that the fare and freight charges shall be born by the contractor. Thus, in view of this clause the Tribunal has rightly included freight in the turnover of the assessee.
In so far as the second issue is concerned with regard to the evidence under section 3D, the Tribunal was not correct in rejecting the four forms dated March 22, 1994. The assessee has produced these four forms before the first appellate authority, but these four forms had contained cuttings. The cuttings were thereafter rectified by the assessee by producing a certificate of the railways to show the correct position.
In so far as the third issue is concerned the assessee has not violated the provisions of section 12(2) of the Act and he is not a manufacturer, he is only a contractor, who is carrying the stone ballast to the railways. He is not involved in any manufacturing activity, therefore, the Tribunal is not correct in holding that the assessee was guilty of violation of the provisions of section 12(2) of the Act.
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2010 (1) TMI 1121 - ALLAHABAD HIGH COURT
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... ... ..... es in the circumstances mentioned in the section. The determination of tax applicable on the date of filing of the return on the law laid down was neither against the law nor mala fide. In the present case also on the date when the returns were filed by the assessee, the notification dated September 30, 1993 had not come. The assessee had filed its return and it paid taxes in accordance with the rates of tax which was applicable at that time. The imposition of tax at the rate, which came subsequently, therefore, in my opinion, was applied to the assessee for reasons that in the present case, the business is closed, the tax had been finally paid and it could not be said that there was any mistake made by the assessee in the matters to be reopened at the later date under section 22 of the Act. The assessee is not liable to pay any interest. The second question is thus answered in favour of the assessee and against the Department. The revision is disposed of as above. No costs.
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2010 (1) TMI 1120 - ALLAHABAD HIGH COURT
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... ... ..... supervision of the engineers of the contractor and then brought to NOIDA at the site of the construction. It has also come on record that rori was purchased from outside the State of U.P. while bitumen was purchased at Mathura. Thus in view of the averments in paras 4 and 5 of the counter-affidavit, it becomes clear that the rori which was purchased from outside the State of U.P. would be excisable to tax under the Central Sales Tax Act and therefore the rate of the tax which should have been imposed on rori would be the rate under the Central Sales Tax Act, which according to the assessee was four per cent and he has been charged at seven per cent. The order dated May 17, 2003 of the Tribunal is therefore modified to the extent that the assessee will be charged the rate of the tax for the rori which was prevalent at that time under the Central Sales Tax Act. Other than this modification, the impugned order will stand as it is. The revision is disposed of as above. No costs.
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2010 (1) TMI 1119 - DELHI HIGH COURT
Whether the petitioner had passed on the sales tax burden to the distributors?
Held that:- When the authenticity of the credit notes had been admitted by the respondent all along and the factum of those credit notes being inclusive of sales tax had been confirmed by the distributors and supported by the documents furnished before the respondent by the petitioner, the Joint Commissioner totally misdirected himself in reviewing the entire case including the authenticity of the credit notes and completely exceeded the limited direction given to it by the order of this court dated May 23, 2008.
Predicated on the documents filed before the respondent and annexed to this writ petition, we are satisfied that the petitioner had not passed on the burden of sales tax to the distributors and dealers and is, as such, entitled to a refund of the same. In the result, the impugned order dated July 4, 2008 is quashed, the writ petition is allowed and the respondent is directed to refund the amounts in respect of the assessment years 1997-98, 1998-99 and 1999-2000 along with interest thereon in accordance with law to the petitioner within a period of four weeks from the date of this order.
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2010 (1) TMI 1118 - ALLAHABAD HIGH COURT
Whether the imposition of tax on the byproduct is bad?
Held that:- The imposition of purchase tax on the assessee for the manufacture of khal is bad because the imposition of tax can only be made on the manufacturer under section 12(2) of the Act, which is liable to pay tax.Since the assessee was exempted from paying tax on the main product, i.e., ghani oil, which is not denied by the Tribunal or by any other authority, it stands to reason that byproduct would also stand exempted for reasons that byproduct only emerges when the main product is made. It cannot by itself become an item of manufacture.
The Tribunal has not shown any reason for coming to the conclusion that the assessee was manufacturing oil by way of expeller in the assessment year 2003-04.
For use of diesel, which is also totally without any evidence to show that the diesel was used or produced for the purpose of manufacturing. Decided in favour of the assessee
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2010 (1) TMI 1117 - KERALA HIGH COURT
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... ... ..... onditions. Considering the penal interest payable under section 23B, we restore the benefit granted to the appellant vide exhibits P5 and P5(a) on condition of payment of Rs. 60,000 (rupees sixty thousand) towards further interest for the belated payment for 1998-99 and Rs. 40,000 (rupees forty thousand) towards further interest payable for the belated payment for 1999-2000. In other words, besides the amount determined as payable by the assessing officer under exhibits P5 and P5(a), if the appellant pays Rs. 60,000 for 1998-99 and Rs. 40,000 for 1999-2000 before January 31, 2010, then the appellant will be entitled to the amnesty benefit granted by the officer. However, if the appellant commits default, recovery under exhibits P6 can be continued. We make it clear that the judgment covers only arrears for 1998-99 and 1999-2000 and for the remaining years, recovery could be continued based on exhibits P6 subject to challenge if any made by the appellant before any authority.
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2010 (1) TMI 1116 - PUNJAB AND HARYANA HIGH COURT
Whether, on the facts and circumstances of the case, penalty under section 14B(7) of the Punjab General Sales Tax Act, 1948, was exigible?
Held that:- In the absence of any cogent material and specific finding that there has been an attempt to avoid or evade the tax due or likely to be due, no penalty can be imposed on the assessee as contemplated under section 14B(7) of the Act. In favour of assessee.
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2010 (1) TMI 1115 - BOMBAY HIGH COURT
Order of reassessment - directions to the assessing officer by Tribunal to give credit of ₹ 1,84,000 with consequential relief as per the provisions of law - Held that:- The proceedings for reassessment in the case in hand were initiated without application of mind and without ascertaining facts and without recording reasons in support of the belief formed by the Sales Tax Officer under section 35 of the BST Act. The assessing officer has assumed jurisdiction by initiating reassessment proceedings not as per law. The assessment order was thus rightly set aside by the Tribunal for the reasons recorded therein.
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2010 (1) TMI 1114 - PUNJAB AND HARYANA HIGH COURT
Whether, in the facts and circumstances of the case, the order of assessment passed after a delay of 18 years suffers from the vice of inordinate delay?
Held that:- In the present case, the assessee had filed his quarterly returns for the assessment year 1978-79, however, the Assessing Authority, Jalandhar, passed the assessment order on July 5, 1996. There could not have been any possibility of having passed any order of assessment, if there was any stay order of the court. As the assessment order was passed after an inordinate delay of 18 years, therefore, we are of the considered opinion that the assessment for the assessment year 1978-79 has to be annulled and the same is annulled. Accordingly, question is answered in favour of the assessee and against the Revenue.
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2010 (1) TMI 1113 - MADRAS HIGH COURT
Fuel suppression or wages paid - Held that:- The entire discussion in the assessment order relates to purchase suppression of the taxable and non-taxable goods. There is not even a reference either as to fuel suppression or wages paid. There are no materials for the assessing officer to make additions of fuel suppression and wages paid.
In view of the above and in view of want of any material for those two additions, the best judgment assessment arrived at by the assessing authority has no rational basis. If those two additions, viz., a sum of ₹ 50,000 towards fuel suppression and ₹ 84,564 towards wages paid, are deleted, the total taxable turnover would come less than ₹ 18,25,000 and in that event, the assessee is not liable to pay any tax. Accordingly, those two additions are deleted, the orders impugned in this revision are set aside. The tax case revision is allowed
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2010 (1) TMI 1112 - KERALA HIGH COURT
Whether the manufacturer is the brand name holder?
If manufacturer is not the brand name holder, whether the assessee is the brand name holder?
Whether assessee's sale can be treated as first sale under section 5(2) of the Act?
Held that:- It is the admitted position that consistent with the agreement, namely, the memorandum of understanding between the assessee and the manufacturer, the entire production was purchased by the assessee and the assessee marketed the products in the State in their brand name. We, therefore, hold that the Tribunal has erred not only in their conclusions, but has failed to appreciate even the facts of the case and their findings are absolutely incorrect and untenable. We, therefore, allow the revision case by reversing the order of the Tribunal and by restoring the order of the Deputy Commissioner issued under section 35 directing revision of assessment for bringing to tax the sales turnover of moulded plastic chairs sold under the brand name Nilkamal in the hands of the respondent-assessee in the revision case.
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2010 (1) TMI 1111 - CHHATTISGARH HIGH COURT
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... ... ..... , as existed at the relevant period, can be imposed on him as existing section 9B came into force only with effect from April 1, 1999. He further argued that there was an inordinate delay in filing the application for reference and the Revenue filed the application without any application for condonation of delay and in these circumstances, the Tribunal has rightly rejected the prayer for reference under section 70 of the Act on the ground of delay. On due consideration of the arguments advanced by the respective parties and further considering the reasons assigned by the Tribunal for rejecting the reference application on the ground of inordinate delay of more than two years, without expressing our opinion on the merits of the case, we are not inclined to interfere with the order passed by the Tribunal, and we hold that the reference application has been rightly rejected on the ground of delay by the Tribunal. The instant application for reference is, accordingly, rejected.
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2010 (1) TMI 1110 - GAUHATI HIGH COURT
Tenders for a settlement for collection of entry tax from loaded commercial trucks referred to therein for the period September 15, 2009 to March 31, 2010 - Held that:- The challenge projected against the impugned settlement on the ground of lack of authority has to be upheld. The petition deserves to succeed. Ordered accordingly. The impugned settlement is hereby interfered with and is set aside.
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2010 (1) TMI 1109 - ANDHRA PRADESH HIGH COURT
Arrears of sales tax due from the second respondent-firm demanded via notice dated September 25, 2009 and to proceed against the property of the petitioner invoking the provisions of the Andhra Pradesh Revenue Recovery Act, 1864
Held that:- Section 15B does not enable the first respondent to attach the petitioner's immovable properties for arrears of sales tax due from the second respondent-firm in which the petitioner's wife is a partner. The impugned notice dated September 25, 2009 does not even record a finding that the property sought to be attached belongs to the Hindu undivided family of which the petitioner's wife is also a member. The petitioner's contention that the property is his self acquired property is not disputed by the first respondent. Even if it were to be held that the petitioner's wife is a member of a Hindu undivided family, the first respondent could only have attached the property of the Hindu undivided family and not the self-acquired property of the petitioner.
The impugned notice dated September 25, 2009 and the consequential notices in form 4 dated August 20, 2009 and form 5 dated October 24, 2009 are, accordingly, quashed.
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